Unconstitutional delineation exercise can be challenged in court — Surendra Ananth

AUG 15 — Once again a government official makes a statement that flies at the face of the Constitution.

The Chief Minister of Malacca, during his speech at the Umno Tangga Batu delegates meeting, proposed a delineation exercise to ensure that the ruling coalition wins back the seats it lost in the 2013 elections. He had also said, “harapan saya supaya pihak EC, untuk terus menyelaraskan persempedanan itu”. The necessary inference from this statement (if true) is that the Election Commission (“EC”) has been working with the ruling coalition for the latter’s interest. The EC has yet to deny its involvement. It would seem that both the Chief Minister (unsurprisingly) and the EC needs to be refreshed on trite constitutional principles.

The EC is a constitutional body. Like any other constitutional body, its very foundation rests on “public confidence”. Article 114(2) of the Constitution reads, “In appointing members of the Election Commission the Yang di- Pertuan Agong shall have regard to the importance of securing an Election Commission which enjoys public confidence.”

Why is it so important that the EC must enjoy public confidence? The EC must be an independent and impartial body with the primary role of ensuring “free and fair elections”. The importance of the independence and impartiality of the EC cannot be overstated. The Reid Commission in its report stated:

“We regard it as a matter of great importance that this Commission should be completely independent and impartial. We therefore recommend that the Election Commission should be a permanent body, that its members should be appointed by the Yang di-Pertuan Besar and should be persons in whom all democratic parties and all communities have complete confidence”

The courts have declared the EC as “custodians of free and fair elections” (see Harris Mohd Salleh v Ismail Bin Majin, Returning Officer & Ors [2001] 3 MLJ 433). The Malaysian Government has also subscribed to similar principles. On 10.04.2012, the United Nations General Assembly had approved Resolution 66/163, which reaffirmed that member states “are responsible for organizing, conducting and ensuring free and fair electoral processes” and reiterated “that transparency is a fundamental basis for free and fair elections, which contribute to the accountability of leaders to their citizens, which, in turn, is an underpinning of democratic societies” (see also Resolution 64/155). Representatives of the Malaysian government in the General Assembly had approved of the said resolutions.

The Malaysian Parliament also took the same position. On 26.03.1994, the Inter-Parliamentary Council unanimously adopted the Declaration on Criteria for Free and Fair Elections. Principle one of the said declaration states, “In any State the authority of the government can only derive from the will of the people as expressed in genuine, free and fair elections held at regular intervals on the basis of universal, equal and secret suffrage”. Principle 4(2) obliges all states to establish a “neutral, impartial or balanced mechanism for the management of elections”. Malaysia is a member of the Inter-Parliamentary Council.

These are principles that the executive, parliament and judiciary have subscribed to. To this end, as stated in Article 113(2) of the Constitution, a delineation exercise is only necessary to “comply with the provisions contained in the Thirteenth Schedule”. It is without a doubt that the primary principle in the said schedule is that “the number of electors within each constituency in a State ought to be approximately equal” (section 2©, 13^th Schedule). As the Reid Commission had stated, “the main object of delimitation is to ensure that so far as practicable every vote is of equal value and we think that the principal factor to which the Commission should have regard is the number of voters in the State”. This is what is commonly termed as equal suffrage, or, equal voting power. As embedded in principle 12 of the Universal Declaration on Democracy, “…elections must be held on the basis of universal, equal and secret suffrage so that all voters can choose their representatives in conditions of equality, openness and transparency that stimulate political competition”.

A delineation exercise is carried out to ensure that all citizens have equal voting power. It is not done for racial or political reasons. Such considerations would be a gross violation of equality guaranteed under Article 8 of the Constitution. It would also pervert the ideal of free and fair elections, which guarantees fair and transparent political competition. Further, it completely undermines the independence and impartiality of the EC.

In all honesty, all the constitutional breaches above have already occurred. The only difference is that it is now being publicly announced. The current electoral map represents the edifice of gerrymandering and malapportionment. For example, Kapar has over 144,000 voters, whereas Putrajaya has about 6,000 voters. This means that one person’s vote in Putrajaya equals to about 24 persons vote in Kapar. Yes, apparently voters in Putrajaya are 24 times more “special” than voters in Kapar. The cascading effect of this is that the ruling coalition managed to turn a 4% vote deficit into a decisive 20% parliamentary seat advantage in the 2013 general elections. The EC chairman’s excuse back in 2014 was that the “one man one vote” system would be impractical. Tindak Malaysia, a NGO advocating for equal voting rights, has drawn up an electoral map with approximately 20% difference in the number of voters in each constituency. Not only have they shown that delineating electoral boundaries to achieve equal (or almost equal) voting power is possible, they have gone further to accomplish the EC’s constitutional goal for them.

The EC must be reminded that, like any other constitutional body, it is subservient to the Constitution. Any delineation exercise that contravenes the Constitution can be challenged in court, even if it is sanctioned by Parliament (similar to laws that are enacted by Parliament). As the then Lord President, Salleh Abas, had tersely observed in Lim Kit Siang v Dato Seri Mahathir Mohamad [1987] 1 MLJ 383:

“When we speak of government it must be remembered that this comprises three branches, namely, the legislature, the executive and the judiciary. The courts have a constitutional function to perform and they are the guardian of the Constitution within the terms and structure of the Constitution itself; they not only have the power of construction and interpretation of legislation but also the power of judicial review — a concept that pumps through the arteries of every constitutional adjudication and which does not imply the superiority of judges over legislators but of the Constitution over both. The courts are the final arbiter between the individual and the State and between individuals inter se, and in performing their constitutional role they must of necessity and strictly in accordance with the Constitution and the law be the ultimate bulwark against unconstitutional legislation or excesses in administrative action.”

* Surendra Ananth is the deputy co-chairperson of the Malaysian Bar Constitutional Law Committee. 

** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.